State v. Glenn

[Cite as State v. Glenn, 2020-Ohio-2880.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2019-05-088
Appellee, : OPINION
5/11/2020
:
- vs -
:
WILLIAM A. GLENN, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-07-1310
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Christopher Paul Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for appellant
M. POWELL, P.J.
{¶ 1} Appellant, William Glenn, appeals from an entry of the Butler County Court of
Common Pleas revoking his community control and imposing an aggregate 30-month
prison term.
{¶ 2} In 2008, when appellant was 18 years old, he was convicted of aggravated
robbery with a firearm specification and sentenced to eight years in prison. In 2019,
Butler CA2019-05-088
appellant was convicted of heroin possession, a fifth-degree felony, and attempted
tampering with evidence, a fourth-degree felony. On February 20, 2019, he was sentenced
to five years of community control on each of the charges. In sentencing appellant to
community control, the trial court acknowledged appellant's prior aggravated robbery
conviction, recognized that appellant "didn't get a break at that time when a lot of other 18-
years-olds get a break for their first mistake," and advised appellant it was giving him "that
break now." As part of his community control sanctions, appellant was ordered to
successfully complete a six-month treatment program at River City Correctional Institution.
The trial court advised appellant that if he violated the terms and conditions of his
community control, he would be sentenced to 18 months in prison on the attempted
tampering charge and 12 months in prison on the heroin possession charge, to be served
consecutively for an aggregate 30-month prison term.
{¶ 3} On April 3, 2019, appellant violated the terms of his community control by
voluntarily signing himself out of the River City program. The trial court held a hearing on
the community control violation. Appellant admitted the violation but explained he left the
program because he was subject to racial slurs and threats. The trial court revoked the
community control and sentenced appellant to consecutive prison terms of 18 months on
the attempted tampering charge and 12 months on the heroin possession charge.
{¶ 4} In imposing the prison terms, the trial court found that appellant's failure to
successfully complete the River City program was not a mere technical violation; it was a
violation of a special condition of appellant's community control. Noting appellant's prior
aggravated robbery conviction, the trial court further found that consecutive sentences were
necessary to protect the public from future crime, were not disproportionate to the
seriousness of appellant's conduct and to the danger he posed to the public, and were
necessary in view of appellant's history of criminal conduct. The trial court incorporated
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those findings into its May 30, 2019 entry revoking community control and imposing the
prison terms.
{¶ 5} Appellant now appeals, raising one assignment of error:
{¶ 6} THE TRIAL COURT COMMITTED ERROR WHEN IT SENTENCED MR.
GLENN TO CONSECUTIVE TERMS OF 18-MONTHS AND 12-MONTHS IN ODRC.
{¶ 7} Appellant challenges his 30-month prison sentence, arguing it violates the
purposes and principles of felony sentencing of R.C. 2929.11 because the trial court "failed
to use 'the minimum sanctions' needed to accomplish the purpose of punishing [him]."
Appellant further argues that the record does not support the trial court's finding that
consecutive sentences were not disproportionate to appellant's conduct and the danger he
poses to the public as he was on community control for non-violent, low-level felony
offenses.
{¶ 8} The R.C. 2929.11 purposes and principles of felony sentencing are
inapplicable to the imposition of a penalty for a community control violation because R.C.
2929.11 does not apply to community control violations and R.C. 2929.15 does not require
a trial court to consider the purposes and principles of felony sentencing when imposing a
penalty for a community control violation.
{¶ 9} R.C. 2929.11(A) provides that "[a] court that sentences an offender for a
felony shall be guided by the overriding purposes of felony sentencing." Likewise, both
R.C. 2929.11(B) and (C) refer to a sentence imposed upon an offender "for a felony." It is
well established that a community control violation is not a "felony" because "any penalty
imposed for violating a condition of one's community control sanctions is a punishment for
that violation and not for the original underlying offense." State v. Lee, 12th Dist. Butler No.
CA2014-03-076, 2015-Ohio-1760, ¶ 7. "In other words, without regard to the classification
of the offense for which the community control sanction was imposed, a community control
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violation is considered neither a misdemeanor nor a felony." Id. By its terms, R.C. 2929.11
plainly restricts its application to sentencing for felony offenses. Because a community
control violation is not a felony, sentencing for community control violations is not subject
to R.C. 2929.11.
{¶ 10} R.C. 2929.15(B) sets forth the penalties a trial court may impose upon an
offender for violating the terms of community control. As applicable here, R.C.
2929.15(B)(1)(c) provides that if the offender violates the terms of community control, "the
sentencing court may impose * * * [a] prison term on the offender pursuant to section
2929.14 of the Revised Code and division (B)(3) of this section[.]" R.C. 2929.15(B)(1)(c)
does not require the sentencing court to consider the purposes and principles of sentencing
of R.C. 2929.11 when imposing a prison term for a community control violation. Rather,
once the sentencing court finds that the offender violated the terms of community control,
R.C. 2929.15(B)(1)(c) plainly authorizes the court to impose a prison term without more.
We therefore find no merit to appellant's argument that his 30-month prison sentence
violated the purposes and principles of sentencing of R.C. 2929.11.
{¶ 11} Appellant further argues that the record does not support the trial court's
finding that consecutive sentences were not disproportionate to his conduct and the danger
he poses to the public as he was on community control for non-violent, low-level felony
offenses.
{¶ 12} R.C. 2929.15(B)(1)(c) plainly provides that when a prison term is imposed as
a penalty for a community control violation, a sentencing court must do so in compliance
with R.C. 2929.14. Lee, 2015-Ohio-1760 at ¶ 10; State v. Duncan, 12th Dist. Butler Nos.
CA2015-05-086 and CA2015-06-108, 2016-Ohio-5559, ¶ 41. If the sentencing court
imposes consecutive prison terms for the violation of multiple community control sanctions,
the court must comply with R.C. 2929.14(C)(4). State v. Hart, 6th Dist. Lucas No. L-18-
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1204, 2019-Ohio-3926, ¶ 10; Duncan at ¶ 41.
{¶ 13} "On appeals involving the imposition of consecutive sentences, R.C.
2953.08(G)(2)(a) directs the appellate court 'to review the record, including the findings
underlying the sentence' and to modify or vacate the sentence 'if it clearly and convincingly
finds * * * [t]hat the record does not support the sentencing court's findings under [R.C.
2929.14(C)(4)].'" State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 28; State v.
Ghazi, 12th Dist. Warren Nos. CA2018-03-023 and CA2018-04-045, 2019-Ohio-339, ¶ 14.
{¶ 14} R.C. 2929.14(C)(4) requires the sentencing court to engage in a three-step
analysis and make certain findings before imposing consecutive sentences. Duncan, 2016-
Ohio-5559 at ¶ 49. The sentencing court is further required to state the required findings
on the record at the sentencing hearing and incorporate such findings into the sentencing
entry. Bonnell at ¶ 29. While the sentencing court is not required to give reasons explaining
these findings, it must be clear from the record that the court made the required statutory
findings. Duncan at ¶ 50. However, "a word-for-word recitation of the language of the
statute is not required, and as long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld." Bonnell at ¶ 29.
{¶ 15} The trial court originally sentenced appellant to community control for two
felony offenses despite his prior conviction for aggravated robbery, an offense of violence.
A condition of his community control was that he successfully complete the River City six-
month treatment program. In short order, appellant voluntarily withdrew from the program
without authorization or prior notice to the trial court or his probation officer. These
circumstances support the trial court's finding that consecutive sentences were not
disproportionate to the seriousness of appellant's conduct and to the danger he poses to
the public.
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{¶ 16} The trial court further made the requisite R.C. 2929.14(C)(4) consecutive
sentence findings during the community control violation hearing before sentencing
appellant to consecutive prison terms for community control violations, and incorporated
those findings into its May 30, 2019 entry revoking community control and imposing the
prison terms.
{¶ 17} Based on the totality of the record at the time of sentencing on the community
control violations, we do not clearly and convincingly find that the record does not support
the trial court's consecutive sentence findings, including its finding that consecutive
sentences are not disproportionate to appellant's conduct and the danger he poses to the
public. Accordingly, we uphold the trial court's decision to impose the consecutive
sentences.
{¶ 18} Appellant's assignment of error is overruled.
{¶ 19} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.
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